State ex rel. Woods v. Hughes Oil Company, a Corp.
| Citation | 226 N.W. 586,58 N.D. 581 |
| Decision Date | 19 August 1929 |
| Court | United States State Supreme Court of North Dakota |
From a judgment of the District Court of Burleigh County Jansonius, J., plaintiff appeals.
Reversed.
Dullam Young & Burke, for appellant.
When forms for making application for compensation are prescribed by the workmen's compensation bureau and a person uses such form in making application for compensation, the commission should not reject the claim for defects not affecting the merits of the claim. Mercer v. Ott, 89 S.E. 952.
"The general rule is that one person is not liable for injuries caused by the negligence of another, unless such person possessed the power to control the acts of the other in respect to the transaction out of which the injury arose . and the test for the determining whether one person is the employee of another . . . is whether the alleged employer possessed such power of control." Lilly v. Haynes Co-op. Coal Min. Co. 50 N.D. 465, 196 N.W. 556.
Where there is no legal liability, the acceptance of a gratuity does not bar the right to compensation. Stowell v. Texas Employers' Asso. 259 S.W. 311.
"Under the Workmen's Compensation Act, the employer's right to recover the amount, which he was compelled to pay to his employee's dependents from a third party whose act was the cause of the accident depends on whether the negligence of such third party was the proximate cause of the injury." Carlson v. Minneapolis St. R. Co. (Minn.) 173 N.W. 405.
O'Hare, Cox & Cox, for respondent.
"The time for filing claims for compensation as provided in § 15 of the act, relates to claims against the compensation fund only, and not to an award against the employer who has not complied with the law." Nyland v. Northern Packing Co. 56 N.D. 624, 218 N.W. 869.
Where an employee is injured by reason of the negligence of a third person and accepts a settlement from such third person, he is under acts thereby debarred from making claim for compensation. 1 Schneider, Workmen's Comp. 188.
In many situations the employee has a choice of remedies. He may proceed under the statute to secure an award or he may sue a third person whose conduct was such as to render him responsible; but the employee is not entitled to double compensation. 28 R.C.L. 833.
"This statute means that the employee may make settlement with a third party and retain the right to collect from his employer for any excess, payable under the act, over and above the amount actually received under the settlement." Peterson v. O'Neil (Minn.) 185 N.W. 945.
"A claim against an employer is waived by a settlement between the administratrix and the wrongdoer injuring the employee." Combined Locks Paper Co. v. Kray (Wis.) 203 N.W. 946.
This is an action to enforce an award of the workmen's compensation bureau in favor of the relator and against the defendant in the sum of $ 4,766.91. The complaint alleges that the defendant is engaged in the business of selling gasoline and other petroleum products in North Dakota and maintains a place for the conduct of such business at the city of Beach in this state; that on May 3, 1923, one William J. Woods, was and for some time prior thereto had been in the employ of the defendant company for the purpose of conducting its business in the city of Beach; that such employment was a hazardous occupation under the Workmen's Compensation Law of this state; that on said May 3, 1923, the said Woods, while so employed and while performing the regular duties incident to, and in the course of such employment, was instantly killed when the truck which he was driving was struck by a Northern Pacific train at the railroad crossing near Beach; that at said time the defendant had not complied with the provisions of the Workmen's Compensation Act of the state of North Dakota in that it had not contributed any premium whatsoever to the workmen's compensation fund; that the relator is the widow of the said Wm. J. Woods, and was at the time of his death living with and dependent upon him for support; that said Woods was also survived by a dependent child; that on June 30, 1923, the relator filed with the workmen's compensation bureau a claim for compensation for the death of her husband, then notifying the bureau that she elected to submit her claim against the employer for such death for determination by the bureau; that on September 23, 1927, a hearing was had before the bureau upon such claim and that the relator and the defendant were present at and participated in such hearing; that on November 4, 1927, the workmen's compensation bureau made an award in the favor of the relator and against the defendant wherein and whereby the defendant was ordered to pay to the relator the sum of $ 4,766.91; that due notice of said award was given to defendant on the same day, but that defendant has failed and neglected to pay the relator such award or any part thereof although more than thirty days have elapsed since defendant was given notice of the making of the award. The answer admits that defendant was engaged in business as alleged in the complaint; that it had not complied with the provisions of the Workmen's Compensation Act; that the relator is the widow of Wm. J. Woods; that a hearing was had before the workmen's compensation bureau at the time alleged in the complaint and that the parties were present and participated in such hearing; that the bureau made the award; that the defendant was notified thereof and that it has failed to comply therewith as alleged in the complaint. The defendant further admits that Woods was killed in a collision between a truck he was driving and a Northern Pacific railroad train; but it denies that at that time he was an employee of the defendant and that his death occurred in the course of any employment by the defendant. The answer further alleges that the relator, on June 30th, 1923, filed an application with the workmen's compensation bureau for payment out of the North Dakota workmen's compensation fund; that said claim was denied and dismissed by an order entered by the bureau on August 14, 1923, and that no appeal was taken from such order. In the answer it is further alleged that no action was commenced by the relator or any person in her behalf against the defendant on account of the death of her husband within two years of May 3, 1923, or at any time until the commencement of the instant case on or about December 20, 1927; that no application for an award against the defendant as a noninsured employer was ever filed with the workmen's compensation bureau by the relator or by any person in her behalf or by any other dependent of said Woods or in behalf of such dependent within one year after May 3, 1923, or at any other time; that by virtue of the foregoing facts the workmen's compensation bureau was without authority or jurisdiction to make the award set forth in the complaint, and that said award is illegal and void. It is further alleged that the action is barred by the statute of limitations, to wit: Sec. 7377, Comp. Laws 1913, for failure to institute the same within two years after the accrual thereof. The answer further alleges that the relator on January 8, 1924, accepted from the Northern Pacific Railway Company, $ 1,000, in full settlement of all damages arising on account of the death of her husband, and that upon such acceptance she executed and delivered to the said railway company an instrument releasing and discharging the railway company, its successors and assigns of and from any and all causes of action, claims or demands, in any manner arising or to grow out of the injuries and death of said Wm. J. Woods; and that on account of the acceptance of said sum in settlement of such damages the award made by the compensation bureau is null and void.
The case was tried to the court without a jury upon the issues thus framed. The trial court held that the acceptance by the relator of $ 1,000 from the Northern Pacific Railway Company estops her from recovering from the defendant, Hughes Oil Company, on account of the death of her husband and that, consequently, the award made by the compensation bureau was illegal and nonenforceable. The plaintiff has appealed from the judgment.
The questions presented for determination on this appeal arise out of the following contentions of the defendant:
1. That the Workmen's Compensation Act requires any person who elects to present a claim against a noninsured employer for determination and allowance by the workmen's compensation bureau, to present such claim within one year after the injury or death; and that inasmuch as the claim in this case was not presented within such time, the workmen's compensation bureau was without authority to conduct any hearing or make any award.
2. That under § 7377, Comp. Laws 1913, any right of action at law in favor of the relator and against the defendant because of the death of the relator's husband became and was barred upon the expiration of two years after the death; that, consequently, the right to present the claim to the workmen's compensation bureau for determination in any event became barred at the expiration of such two year period; that the claim involved here was not presented for determination within such time and, hence, became and was barred and that the workmen's compensation bureau was without authority to conduct any hearing or make any award with respect thereto.
3. That at the time of his death the relator's husband, William J. Woods, was not an employee of the defendant, Hughes Oil Company, within the...
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